Phil Luciano: There's no denying legality of No Refusal

Thursday

I'll admit, I got constitutionally squeamish upon the news that Peoria police would start looking to jab needles into suspected drunken drivers.

I'll admit, I got constitutionally squeamish upon the news that Peoria police would start looking to jab needles into suspected drunken drivers.

Not that I care to defend the right to drive loaded. But, even with my lack of a law degree, I tend to get worked up about the Fourth Amendment (regarding illegal searches and seizures) and the Fifth Amendment (the right against self-incrimination).

Judging from online comments to this paper, others are up in arms too. But crab all you wish, the question comes down to this: Is the No Refusal initiative legal and constitutional?

Short answer: seems so.

No Refusal takes aim at suspected drunken driver who won't blow a breath test. As prosecutors and defense attorneys well know, it's hard to prove a DUI without such evidence. So, with No Refusal, Peoria County States's Attorney Kevin Lyons encourages Peoria cops to seek an immediate search warrant from a judge and have EMTs draw blood at the police station.

The first try, announced in advance, occurred over Memorial Day weekend. Two noncompliant drivers underwent forced blood draws. Lyons says further No Refusal weekends will occur but won't be announced. And they could expand beyond city limits.

Lyons thinks it's the only such initiative in the state. Not for long, apparently. Two weeks ago, officials in Kane County announced similar plans there, though authorities have yet to try it out.

Is this legal? Here's a key tenet of DUI laws in every state: Simply by sliding behind the wheel, all drivers give implied consent for impairment testing via breath, blood or urine. By Illinois law, the power of that choice is given to the arresting officer.

More and more states are opting for the Dracula approach to DUI arrests. At least 15 states allow police to take blood without the driver's consent. Lyons says local cops won't use force; a refuser instead will be charged with resisting a police officer, a misdemeanor with a penalty comparable to DUI.

However, according to The Wall Street Journal, at least eight states allow police to use reasonable force to draw blood. Even Texas, home to rugged individualism and personal freedom, has expanded the scope of blood draws to let cops themselves take the sample.

This process has drawn some protests. Some medical professionals have cited the Hippocratic Oath, which puts the patient's needs first, and refused to administer the blood draw.

That hasn't happened here yet. Still, the Peoria Police Benevolent Association has filed a grievance, worried over possible civil suits filed by noncompliant drivers. However, Illinois law does hold that "a person authorized ... to withdraw blood or collect urine shall not be civilly liable for damages." Of course, because Lyons' plan is new, that safeguard hasn't been tested in court.

But other No Refusal tenets have undergone judicial review.

The U.S. Supreme Court had its last big blood-draw hearing way back in 1966, according to The Wall Street Journal. In a California case, a suspected drunken driver crashed into a tree, and he was taken to a hospital. Over his objections, police demanded a blood draw, which led to a DUI conviction. In a 5-4 ruling, the court ruled the blood draw did not violate his right against self-incrimination or any prohibitions against illegal searchers.

Still, majority justices did note that their decision was based on the "reasonable manner" in which the blood was taken: at a hospital. It expressed reservations about blood being drawn elsewhere, such as at a police station, because that could "invite an unjustified element of personal risk of infection and pain."

So, 42 years later, what about today's samples taken in some states by reasonable force? Last year, a New Jersey appellate court upheld police officers' right to use force to take blood, even in a case whereby the suspect was left with permanent nerve damage when cops held down his wrists to get a needle jab.

Plus, police apparently don't have to stop at just one test. In 2005, the federal high court let stand a Wisconsin ruling allowing police to demand a blood draw over the objections of a hospitalized drunken driver. Moreover, in that case, police already had an incriminating Breathalyzer evidence (0.13 percent, well over the 0.08 intoxication standard), but officers wanted to make sure of a conviction.

I realize the idea of forced body intrusions seems almost un-American. Then again, it's not like cops are hauling random soccer moms out of vans, shoving them to the ground and ramming a needle into the arms.

First, cops have to have probable cause. Then, by law, they're allowed to demand a sample. The courts have pretty much said a blood draw is OK.

You can carp all you want. But it all seems legally and constitutionally sound.

Phil Luciano can be reached at pluciano@pjstar.com or (309) 686-3155.

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